RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01395
            INDEX CODE:  134.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO



_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to remove all references to a civilian arrest
for assault and battery and related civilian court proceedings.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The civilian  Virginia  (VA)  court  issued  an  order  requiring  the
expungment  of  all  records  relating  to  his   arrest   and   court
proceedings.   His  military  records  should  therefore  be  expunged
pursuant to this order.

In support of his request, the applicant  submits  copies  of  the  VA
Expungement, a legal assistant’s statement,  the  NCIC  check  by  the
AFOSI, and a Waiver Request/Authorization.  The  applicant’s  complete
submission, with attachments, is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Delayed Entry/Enlistment Program (DEP) on 31
May 2002.  He contracted his enlistment in the Regular Air Force on 22
October 2002 in the grade of airman first class (E-3) for a period  of
six years.

Information extracted from the applicant’s submission reveals that, on
6 April 2002, he was arrested for assault and battery charges.  On  29
July 2002, the charges were dismissed “with  accord  and  satisfaction
pay costs/$62.00 costs” and the Circuit Court ordered the  expungement
of applicant’s records.  An enlistment waiver request was approved  by
the group commander on 11 September 2002.
_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/JA recommends the application be denied.  JA stated  that  the
applicant’s recruiting record (Waiver Request/Authorization) indicates
that the applicant’s pre-enlistment conduct (including law violations,
such as the assault and battery and self-admitted marijuana use)  made
him ineligible for enlistment in the  absence  of  a  waiver  of  such
ineligibility factors.  JA believes the information  relating  to  the
assault and battery offense is properly  a  part  of  the  applicant’s
military records and should not be removed.   JA  notes  that  the  VA
court’s order to expunge  all  records  relating  to  the  applicant’s
arrest and court proceedings is without  effect  as  regards  the  Air
Force; under the supremacy clause of the federal constitution, such  a
state order is not binding upon the  federal  government.   JA  states
that an Air Force determination of  enlistment  eligibility  is  based
upon the recruit’s conduct, regardless of whether the conduct resulted
in dismissed charges or an expunged arrest record.  State  expungement
orders typically do not focus upon the question  with  which  the  Air
Force is most concerned, that is, whether or not  a  recruit  with  an
arrest record is suitable for military  service.   VA  law  permits  a
court to dismiss pending criminal  charges  for  assault  and  battery
against a defendant who provides redress to the injured party  and  to
expunge  the  defendant’s  criminal  record.   JA  believes  that  the
applicant’s expungement order does not justify deletion of information
pertaining to his arrest by civilian  authorities  and  related  court
proceedings.  The Air Force, as a federal  executive  agency,  is  not
required to honor state court orders with respect to matters which are
exclusively reserved to federal control, including  the  determination
of enlistment eligibility and the maintenance of  records  related  to
such determination.  Since JA can discern no evidence of an  error  or
injustice  requiring  AFBCMR  action,  they  believe  the  information
relating to applicant’s arrest and the  disposition  of  the  civilian
charges against him should be maintained as a  part  of  his  military
record.  The HQ AFPC/JA evaluation is at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion and indicated that, if the
Air Force found the State of Virginia’s record of arrest relevant, and
it found the dismissal relevant, then it, too, should find the State’s
expungement relevant.  The fact of the matter is, the State  found  it
in the interest of justice to expunge his record of arrest  and  court
proceedings, and the Air Force has not been given any reason  to  find
the State in error.   AFI  36-2002  (Regular  Air  Force  and  Special
Category Accessions) does not say that the expungement itself is to be
negated and rendered impotent.  Based on the recruiter’s guidance,  he
enlisted before the expungement  was  complete.   Had  his  enlistment
taken place  just  a  few  months  later,  when  the  expungement  was
complete,  this  matter  would  not  have  been  considered   in   his
eligibility.   This  is  confirmed  by  the  relatively   recent   OSI
background check, which shows that there is no criminal record.  As to
the issue of guilt and “questionable moral character,” the  Air  Force
is not in the position to assess this.  The whole  question  of  guilt
resided with the accuser and the State of VA, who  both  had  all  the
information pertaining to his “conduct” and who both found it  in  the
interest of justices to dismiss the charges and the State went further
by honorably erasing all record of them.   The  charges  were  dropped
because they were bogus; no redress was necessary.  The  State  of  VA
was charged with mitigating his case and he believes that if  the  Air
Force is truly interested in justice, it will respect the State’s fair
and competent discernment.  Additionally, the Air Force has been given
no compelling reason to preclude granting his reasonable  request  for
his military records to justly reflect reality, that is,  no  criminal
record.  If not corrected, the Air Force’s endorsement  of  the  false
affirmation  in  question  could  wrongly  and  unjustly  inhibit  the
fulfillment of his true potential in his service  to  the  Air  Force.
The applicant’s complete submission, with attachment, is at Exhibit E.
_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case.
However,  we  agree  with  the  opinion  and  recommendation  of   the
appropriate Air Force office (HQ  AFPC/JA)  and  adopt  the  rationale
expressed as the basis for our decision that the applicant has  failed
to sustain his burden that he has  suffered  either  an  error  or  an
injustice.  In this respect, we note that the Air Force, as a  federal
executive agency, is not required to honor  state  court  orders  with
respect to matters which are exclusively reserved to federal  control,
including  the  determination  of  enlistment  eligibility   and   the
maintenance of records related to such  determination.   We  therefore
agree with HQ AFPC/JA that the information concerning the  applicant’s
arrest  and  the  disposition  of  the  civilian  charges  should   be
maintained as part of his military record.  In view of the  above  and
absent evidence to the  contrary,  we  find  no  compelling  basis  to
recommend granting the relief sought in this application.
_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 31 July 2003, under the  provisions  of  AFI  36-
2603:

                  Mr. Philip Sheuerman, Panel Chair
                  Ms. Brenda L. Romine, Member
                  Mr. James W. Russell III, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number BC-2003-01395.

   Exhibit A.  DD Form 149, dated 12 Apr 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/JA, dated 16 May 03.
   Exhibit D.  Letter, SAF/MRBR, dated 30 May 03.
   Exhibit E.  Letter from Applicant, dated 9 Jun 03, w/atch.




                                   BRENDA L. ROMINE
                                   Acting Panel Chair